1

Introduction

1. This Application alleges racial discrimination and racial harassment with respect to employment

contrary to the Human Rights Code R.S.O. 1990, c. H. 19, as amended the ‘Code’. The applicant

also alleges he experienced reprisals contrary to the Code. The respondent denied discrimination

and harassment and sought dismissal of the application at its early stage. The Human Rights

Tribunal of Ontario, amended ‘HRTO’, sought to hear from the applicant and then from the

witnesses before making its decision.

Legislative Framework governing the Hearing

2. The Code states that every person has a right to equal treatment with respect to employment

without discrimination and harassment because of race, ancestry, place of origin, colour, ethnic

origin, creed, sex, sexual orientation, age, record of offences, marital status, family status or

disability. It also protects a person from reprisals for exercising their rights.1

3. With respect to discrimination by association the Code states:

A right under Part I is infringed where the discrimination is because of relationship,

association or dealings with a person or persons identified by a prohibited ground of

discrimination. R.S.O. 1990, c. H.19, s. 12.2

4. There is almost inevitably a link between the language we speak or the accent with which we

speak a particular language on the one hand, and our ancestry, ethnic origin or place of origin on

the other. A person's accent is also often associated with her or his "mother tongue" or place of

origin. Because a person's accent is usually related to her or his ancestry, ethnic origin or place of

origin, the Code can be infringed when someone is otherwise discriminated against because of

their accent. In these kinds of situations, the underlying discrimination is often actually based on

ancestry, place of origin and/or ethnic origin.3

5. In the interests of the public the Ontario Human Rights Commission (‘OHRC’) simplified the

differences of racism & racial discrimination, in that racism is,

1 Ontario Human Rights Code, R.S.O. 1990, c. H. 19, s. 5(1), 5(2), 8, Relevant Statutes, Schedule A, 12 Ibid, s. 12 3 Ontario Human Rights Commission – Policy on Discrimination and Language, 2009, Schedule A, 2

2

‘ … a broader experience and practice than racial discrimination. It is an ideology that

either directly or indirectly asserts that one group is inherently superior to others.’4

6. Whereas racial discrimination is, ‘ … a legally prohibited expression of racism. It is any action

based on a person’s race, intentional or not, that imposes burdens on a person or group and not

on others …’5

7. ‘Racial harassment’ means that someone is bothering you, threatening you or treating you unfairly

because of your race, colour or ancestry. Racial harassment may also be connected to where you

were born, your religious belief, your ethnic background, citizenship, or even your language.

Racial harassment can happen when someone: makes racial slurs or jokes, ridicules or insults you

because of your racial identity, calls you names because of your race, colour, citizenship, place of

origin, ancestry, ethnic background or creed.6

8. Racial harassment can have a bad effect on or ‘poison’ a person’s work environment.7

Evidence relative to the Legislative Framework

The Applicant

9. Mr. Michael Jack had an excellent educational and sport background with no problems in life in

general prior to joining the Ontario Provincial Police (OPP).8 In August 2008 Jack joins the OPP.9

10. During the training at the Ontario Police College (OPC) and the Provincial Police Academy (PPA)

Jack continues to perform in the same fashion as he is accustomed to. He graduates from the

Ontario Police College (OPC) with a 91.6 cumulative average (course average is 81.5; number of

recruits ~ 470) and he receives a 100% Ontario Police Fitness Award (only 5 recruits receive the

award).10

4 OHRC brochure on Racism & Racial Discrimination, 2009, Schedule A, 3; Exhibit 92 - Applicant’s statement, pgs. 67 & 685 Ibid6 Ontario’s Human Rights Commission - Racial Harassment Brochure, 2009, Schedule A, 47 Ibid; Exhibit 92, Applicant’s statement, pgs. 67-688 Exhibits 1, 2, 3, 4, 5, 6, 7, 9, 14, 15, 92 pg. 1, Jack’s exam, background investigation report showing skills, languages, education and other pertinent background information

9 Exhibits 10, 1110 Exhibits 12, 14, 15, 92 pg. 2

3

11. Further to this, at the PPA Jack wins the “Top Dog” award for being the best in his class (110

recruits) in handgun use based on draw speed, shooting speed and accuracy.11

12. In January 2009 Jack starts at the Peterborough County OPP detachment (‘detachment’). From

day one at the detachment he feels something is not right. This was his testimony during

examination-in-chief and it was unchallenged during the cross-examination.12

13. Sometime prior to January 2009 Jack is secretly assigned a racially derogatory nickname ‘Crazy

Ivan’13 of which he accidentally becomes aware only 10 months after the termination of his

employment.14

14. Unlike many Jack’s platoon members at the detachment Jack did not grow up in the area of

Peterborough County.15 Moreover, Jack is an immigrant in Canada who speaks English with a

thick Russian accent. This portion of his testimony was not challenged during his cross and hence

remains factual.

Racially biased email - August 5, 2008

15. Cross-examination of Sgt. Rathbun and Cst. Gravelle revealed prejudices and racial discrimination

towards the Jack. Being that Jack testified that he attended Peterborough detachment on three

separate occasions, initially for the purpose of introducing himself and then for the two ride-alongs

with the officers, it stands to reason that he ought to have been known and identified by

‘probationary recruit Michael Jack or Jack’. However, Rathbun specifically focuses on the

applicant’s race, ancestry and place of origin by referring to him in paragraph two as,

‘… the Russian male who has spent time in the Israeli Army, with the name of Michael

JACK (DOB: 16 Dec 1972).’ 16

16. Had the subject of the email been a Canadian born person, e.g. Mike Johnston, Rathbun would not

have referred to him in paragraph 2 as,

11 Jack’s exam12 Ibid, Exhibit 92 pg. 6 2nd last para. to pg. 7 top para. - Jack’s first day with Filman13 Flindall 12-Sep-16 pgs. 19-20, 139-14014 Duignan 8-Feb-16 pgs. 159-163, Exhibit 92 pg. 58 2nd last para., Jack’s exam15 Jack’s exam; Exhibit 92 pages 3 and 416 Rathbun 8-Feb-16 pgs. 11, 12, 17-19, 24, 25, 39, 46, 50, 51, 54, 57, 58, 65, 72-73, Exhibit 93

4

‘… the Canadian male who has spent time in the Canadian Army, with the name of

Mike JOHNSTON (Date of Birth).’

17. Based upon the last sentence in that email it is irrefutable that it was Gravelle that fed all the lies

and exaggeration to Rathbun who in turn believed it and fed them to management at the

detachment.17

18. Gravelle confirms it in his cross.18 Furthermore, Gravelle knows and agrees with the definition of

prejudice.19

19. Gravelle explains that the concerns that he conveyed to Rathbun were based on what he saw. Jack

showed him his gun collection, some photographs one of which depicted Jack holding an M-16

with a tactical knife in his mouth. He also saw that Jack locked all doors to the rooms they entered

and left. All of this was foreign to Gravelle for he had never seen behavior like this before.20

20. Jack’s testimony was that he invited each of the officers that took him out on those two ride alongs

into his residence for refreshments and to show them his gun collection to impress upon them how

safely they were stored in compliance with all applicable regulations. He naturally showed them

photographs of his life, including his life in Israel and how normal it was for people to be seen

walking around with guns.21

21. Had Gravelle simply asked Jack why he was locking all the doors he would have found out that

the landlord’s son had some unsavory characters in the house at times which is why Jack always

kept all doors to the rooms he rented locked.

22. Rather than explore his observations further to see why Jack had invited him into his apartment,

showed him his gun collection, showed him some photographs and was locking all doors Gravelle

forms an unfavorable opinion of Jack beforehand and without knowledge, thought or reason.22

23. In other words Gravelle irrefutably displays his prejudice towards Jack.

17 Exhibit 92, pg. 6, para. 218 Gravelle 8-Feb-16 pg. 95, l. 7-1119 Ibid, pg. 105, l. 1-920 Ibid, p. 99: 16-25, pgs. 100-104, 107-109, 11121 Exhibit 13, Jack’s exam22 Gravelle 8-Feb-16 pg. 105

5

24. The respondent may try to explain that Jack was kept under surveillance for a concern of not

following direction at the Provincial Police Academy (PPA). However, as Jack testified he was

simply following his orders regarding head and body shots in the night time shooting scenario. He

followed the same direction given to him for the day time shooting scenario and had a photograph

taken of another recruit and himself following this direction.23

25. Regardless of the position of the applicant or the position of the respondent ‘Exhibit 141’ on page

two unequivocally states:

‘We consulted with HR and Dr. LaPalme and after all observations have been reviewed it

is the opinion of the force psychologist that recruit Jack is a very capable, highly

intelligent recruit who will be an asset to the organization. … There is no concern as Jack

understands the difference between stopping the threat and eliminating the threat.’24

26. In the words of OHRC brochure that email25 propounded an action based on Jack’s race, regardless

of whether or not it was intentional. An action that did impose burdens on Jack in that it

questioned his sanity and state of mind only because he was from the middle east, had supposedly

been in the Israeli army and had killed many people. The burden it imposed on him was that he

was subjected to a second background investigation, had his references interviewed again26 and

then subjected to a second psychological interview with the respondent OPP’s psychologist.27

27. Though ‘race’ only needs to be one factor in a situation for racial discrimination to have occurred

this email violated Jack’s protected grounds of ‘race’, ‘ethnic origin’, ‘place of origin’.28

28. That email stemmed from prejudice and went out from a sergeant who conveyed that prejudice to

detachment management who in turn conveyed it to OPP command staff.29

29. That email poisoned the minds of Regional Command towards Jack,

23 Exhibit 1424 Exhibit 141 pg. 225 Exhibit 9326 Exhibit 9427 Exhibit 9528 OHRC brochure on Racism & Racial Discrimination, Exhibits 92, 93, 94, 95, 136, 140, 141, Johnston 9-Feb-16 pg. 11929 Exhibit 93, 94, 95, 140, 175

6

‘… that members from Peterborough Detachment had concerns about Michael Jack, a

candidate in our recruitment process.’30

It did cause Regional Command to issue a directive to detachment to have Jack closely monitored

when he arrived there.31

30. Upon receiving word of this direction and when notified that he is getting a new recruit named

Mike Jack, Sgt. Flindall immediately seeks confirmation of that direction.32

31. Rathbun testimony also shed evidence that he shared the concerns of Gravelle due to Jack’s ethnic

background and his knowledge that Israel was often in the news as being in a war zone area.

Hence, the information from Gravelle about Jack having killed many people during his time in the

Israeli Army was synchronous with his knowledge.33

32. Evidence revealed that Jack never served in the Israeli Army, but the Navy and that he had served

as a technician and had never seen any combat duty.34

33. That racially derogatory email ignited a flame of racism and racial discrimination at the

detachment towards Jack. It was something Jack felt on his very first day at the detachment though

he could not attribute this treatment to racial discrimination at the time.35

Racially derogatory nickname CRAZY IVAN

34. That racially derogatory email was the key factor in a racially derogatory nickname of ‘Crazy

Ivan’ being assigned to Jack. In the words of witness Cst. Kevin Duignan,

‘that nickname was given to him long before he got here (Peterborough Detachment).’36

35. The word Ivan is slang for a Russian and the word Crazy is self-explanatory. In nick naming Jack

“Crazy Ivan” prior to arriving at the detachment the OPP was actually telling the detachment that

a Crazy Russian was arriving.

30 Exhibit 141, pg. 1 under the heading ISSUE31 Johnston 9-Feb-16 pg. 119: 9-2132 Exhibit 14033 Rathbun 8-Feb-16 pg. 4034 Exhibit 4, Exhibit 92 pg. 1: 3rd last paragraph, Jack’s exam35 Exhibit 92 pg. 6: 2nd last paragraph, Jack’s exam36 Duignan’s audio recording, 8-Feb-16 pg. 175: 2-11

7

36. Jack testified about the racially derogatory nickname ‘Crazy Ivan’. His testimony was not shaken

by cross. On re-examination Jack explained why he found such a nickname offensive and

derogatory. His testimony during his re-examination was clear, candid and powerfully emotional

about how derogatory such a nickname was.37

37. On the stand Duignan was concerned about what he had said years earlier in an audio recording

and so his testimony about who and when Jack was given that nickname is filled with a lot of

pauses and deflections.38

38. Mr. Greco testified that it was Cst. Gravelle that called Jack “Crazy Ivan” behind his back and

also mocked his accent when they happened to bump into each other at the Peterborough

courthouse or at the gym.39 Greco had no reason to lie or manipulate any facts for he was not at all

related to the respondent OPP. His testimony was clear, candid and truthful. It had the very real

ring of truth.

39. Gravelle’s own testimony revealed his racial prejudice towards Jack and so it is no surprise that he

was displaying that racial prejudice outside of the work environment in the absence of Jack.

40. Gravelle actions here are racism in action.

41. That flame of racism and racial discrimination towards Jack was something that spread at the

detachment.40

42. Prior to Jack’s arrival at the detachment Jack’s future sergeant, Sgt. Flindall addressed his

subordinates during a shift briefing regarding the use of that nickname.41

43. Based on his treatment Jack believes that Flindall did not address the use of that nickname on his

own volition but rather upon a duty imposed on him by his superiors. However, it was still being

used by many at the detachment for its use was not something that could readily be controlled. It

was this poisoned work environment that Jack walked into.

Discrimination based on Jack’s accent37 Jack’s re-exam 22-Sep-15 pgs. 63-65, Exhibit 92, p. 6838 Duignan 8-Feb-16 pgs. 161-166, 17539 Greco 10-Feb-16 pgs. 66, 71, 8740 Duignan 8-Feb-16 pgs. 173-174, D’Amico 9-Feb-16 pgs. 145-146, Postma 10-Feb-16 pgs. 13-14, Payne 14-Sep-16 pgs. 84-8541 Flindall 12-Sep-16 pgs. 19-20, 139-140

8

44. Jack testified that he was singled out at the PPA due to his accent. He testified that there were 109

recruits in the auditorium. The orientation session was conducted by Sgt. Tozser and everyone had

to stand up one by one and introduce themselves. When it was time for him, he stood up and

briefly introduced himself to the class. When he finished Tozser addressed the audience in a clear

and loud voice, ‘Did anyone get that?’ She then addressed him personally, ‘You have a very thick

accent. You have to speak very slowly.’ Jack testified the whole class witnessed that.42

45. Jack’s testimony and how those comments singled him out remained unshaken through cross.

Counsel for the respondent had Jack acknowledge that he did speak with a noticeable accent and

suggested that surely he knew people who found it hard to understand him at times and so there

was nothing wrong about how the instructor addressed the class. However, Jack did not agree with

her. He did not agree because he knew how he felt when those words were spoken.43

46. His accent that made him stand out was often the subject of a conversation with his peers and his

coach officer. The respondent OPP even noted it in his Performance Evaluation Reports (PER)

that Jack is aware that he speaks with a thick accent. It is true that Jack grew more conscious of it

and how much of a problem it was because it was being brought to his attention regularly.44

47. Regularly to the point that Jack testified that he considered taking speech language classes to get

rid of his accent. He communicated this to Filman and to Payne.45

48. The fact that Jack was the only one in the detachment who spoke English with a thick foreign

accent, born in Russia (place of birth), of Jewish heritage (is a Russian Jew), of Israeli background

(Israeli citizen) and targeted is also evidence of a violation of his protected grounds by the

respondent OPP.46

42 Jack’s exam and cross43 Jack’s cross44 German 11-Feb-16 pg. 68, PERs month 4 and 5, Radio Communications, Exhibit 92 page 10 para. 4 and last para., Jack’s exam45 Filman 9-Sep-16 pg. 71, Payne 14-Sep-16 pg. 12846 Jack’s exam

9

Discrimination by association with persons identified by prohibited grounds

49. Jack was accused by Flindall of associating with members of organized crime, the so called

‘Undesirables’.47

50. The ‘‘Undesirables’ are identified in the PSB investigative report. They are human beings –

specifically Albanian Canadians and such a term directed at them targets their race, ethnic origin

and place of origin.48

51. This term for a human being is actually steeped in the OPP culture and is something that needs to

be addressed by this Tribunal.

52. Sgt. Butorac knew the OPP’s use of such terminology was not congruent with the Code.49

53. Butorac ignorance of the law is apparent by his reference that the Police Services Act (PSA) states

that ‘Undesirables’ are people with criminal records.’50 However, he has been steeped in the

OPP’s use of such a derogatory and humiliating term for Canadians with criminal backgrounds

that he instinctively, calmly and without any reservation describes who the OPP refers to with

such a term. Hence, he actually believes that the PSA states that ‘Undesirables’ are people with

criminal records.’ It is clear that the OPP breeds this culture of disrespect and prejudice and even

promotes some.51

54. Sadly is the fact that Jack never associated with criminals other than work out at a gym where

three of these individuals happened to also work out at. This all happened 6 years prior to him

becoming a police officer and as his testimony he touched base with one of them via the telephone

and at the gym for the purchase of a rifle scope for his gun collection. He clearly testified that he

had no contact with two since summer 2003 and with one since summer 2008.52

55. Hence, by testimony alone the OPP was alleging an association that simply was false.

47 Campbell 8-Sep-16 pg. 69, Exhibits 100, 187, 19348 Exhibit 135 pg. 149 Butorac 14-Sep-16 pgs. 61-6250 Ibid51 Ibid, Brockley 11-Feb-16 pg. 5252 Exhibits 135, 92 pgs. 48-50, Jack’s exam

10

56. D/Cst. Brockley testified that the phone calls were made in 2009 when being questioned about

when Jack running that license plate. He lied and Jack’s testimony and the ensuing PSB

investigation report that confirms Jack making calls in 2008 to one of them to purchase a scope

proves it.53

57. D/Cst. German, like Brockley was reluctant to use the word ‘Undesirables’ and reluctant to

identify who the OPP referred to with such terminology during her testimony. The word

‘Undesirables’ was something that she simply could not utter due to how derogatory it was in

relation to people.54

58. The point is many officers would not use that term to refer to another human being and naturally

are hesitant to speak it in the setting of a Human Rights hearing. However, not within the policing

employment settings.55 Brockley’s exam in this area reveals how he readily used such a term in his

working environment. Brockley’s exam was not cross-examined.56

59. The effects of that allegation made Jack feel like an UNDESIRABLE57 and Butorac’s testimony

about how concerned he would be to get such an allegation did not help any.58

Constable Shaun Filman and his lack of interest in coaching Jack

60. Jack testified during his examination-in-chief that he had to fix Filman’s grammar and spelling

mistakes in his PERs and even later showed Filman how to use a spell-checker.59

61. Jack testified that Filman treated him like a leper. Jack testified that it was him who approached

Flindall regarding his concerns about Filman’s coaching.60 Flindall did not recall that.61

53 Brockley 11-Feb-16 pgs. 16-18, Exhibit 135 pg. 4: para. 5 and 6, Jack’s exam54 German 11-Feb-16 pgs. 73-7455 German 11-Feb-16 pg. 73, Brockley 11-Feb-16 pg. 5156 Brockley 11-Feb-16 pg. 52, Exhibit 135 pg. 1, witness - Jamie Brockley, last sentence57 Nie 15-Sep-16 pg. 24, Exhibit 92 pg. 41, para. 5, Jack’s exam58 Butorac 14-Sep-16 pgs. 61-6259 Flindall 12-Sep-16 pg. 30, Exhibit 92 pg. 6, Jack’s exam60 Exhibit 92, pg. 1161 Flindall 13-Sep-16 pg. 51

11

62. Filman’s testimony differs from his entry in Point Form Chronology (PFC)62 page 4, first

paragraph, March 2009 entry, where he says he stopped 3 vehicles. In his testimony he says he

stopped 7 or 8 vehicles.63

63. Filman’s testimony differs from his entry in PFC page 4, second paragraph, 04 Mar 09 where he

states that Jack told him about the video pen. His testimony reveals otherwise.64

64. Filman neither attended nor was aware what the meeting on August 19, 2009 was about.65 If

anything this attests to his entire lack of interest in coaching Jack.

65. Illuminating is Flindall’s notes that state Filman was present at the meeting.66 It is a lie but more

importantly it is documentary evidence of how one can write in whatever they want in their notes,

more accurately known as ‘doctoring of notes’.

66. Filman’s notebook for August 16, 2009, the date that Jack alleged Filman’s signature on Month 5

PER was forged is conveniently missing.67

67. Filman could not explain why his signature on Jack’s Month 6&7 PER is missing.68

68. Filman testified that in summer 2009 he also took vacation69 and that he worked on a special

project as a result of which he was coming to work in plain clothes, his shifts were different, he

did not even hear radio calls and had to rely on other people tell him about Jack’s performance

which in essence means Jack had no coach officer.70

69. Filman testified inter alia that Flindall made changes to Jack’s Month 6&7 PER, that in some

parts of the evaluation it was not Filman’s verbiage, that he did not author it completely, that he

did not have a recollection of some other entries in it, that there could be things that were

augmented, that he could not provide a 100% answer, that Payne might have made input. Filman

also could not explain why there was a difference in writing style of the occurrence number in

62 Exhibit 14363 Filman 9-Sep-16 pg. 2664 Filman 9-Sep-16 pg. 4865 Ibid pgs. 57-5866 Flindall 13-Sep-16 pgs. 127-12867 Ibid pgs. 54-5568 Ibid pgs. 92-9369 Ibid pgs. 83, 95, 13070 Ibid pgs. 44, 47, 48, 51, 94, 119

12

PER 6&7 from his previous evaluations and that he was not sure that he wrote some specific

examples.71

70. Filman did not go on parental leave for the remaining time of Jack’s probationary term like the

detachment commander’s comment in PER 6&7 claims.72

71. Filman was very evasive in answering a simple straightforward question whether he authored in

entirety Jack’s PER 8.73

72. Filman neither knew when Jack refused to sign his PER 8 nor whether a performance evaluation

meeting took place nor did he know who gave Jack his PER 8.74

73. Filman admitted to making a number of errors with respect to Jack’s PERs.75

74. Considering the totality of Filman’s evidence it only stands to reason that Filman was neither

available nor interested in coaching Jack, which goes hand-in-hand with Campbell’s evidence that

Jack was being left on his own to fully investigate matters beyond his experience level.76

75. At the top of the first page of the PFC77 it states in bold print ‘The author of the entry has placed

their name adjacent to the date of the entry’. While all other witnesses who made entries in that

PFC were able to identifies their respective entries and admit which entries were theirs as in the

case of all the other documentary evidence78, Filman was the only one who was nothing but

evasive and contradictory about his contributions to the PFC79 but did admit making them after

November 26, 2009.80

76. Filman’s explanation about the stark difference between his contemporaneous entries in Jack’s

PERs in early 200981 versus his subsequent long-time-after-the-alleged-fact entries in PFC lacks

71 Ibid pgs. 95, 98, 112, 113, 119, 19772 Ibid pgs. 128-12973 Filman 9-Sep-16 pgs. 101-10274 Ibid pgs. 103-10575 Ibid pgs. 199-20376 Campbell 8-Sep-16 pgs. 23, 45-4777 Exhibit 14378 Campbell 8-Sep-16 pgs. 167-170, Flindall 12-Sep-16 pgs. 11-12, Flindall 13-Sep-16 pgs. 197-199, Nie 15-Sep-16 pgs. 15-16, Exhibits 169, 174, 189, 211, 220, 22779 Filman 9-Sep-16 pgs. 8-9, 137-141, 154-15580 Ibid pages 144, 161, 163, 166, 16781 Exhibits 19, 22, 23, 25

13

any sense.82 His 3 entries which are dated March 7, 2009,83 refer to incidents which are purported

to take place on a date when both Jack and Filman were off-duty on rest days.84

77. Finally, Filman’s evidence ‘Sergeant Flindall was advised’ is contradicted by Flindall’s

evidence.85 If anything, this attests to the lack of credibility of Filman’s entries in the PFC, one of

the documents that were used to make a final decision to terminate Jack.

Sergeant Robert Flindall and his strong dislike of Jack

78. During his time at Peterborough OPP detachment,

Jack is informally commended by Sgt. Postma for his dedication to his work and for very

impressive neatness of his uniform.86

Jack is informally commended by Sgt. Butorac for having the best traffic reports at the

detachment.87

Jack is informally commended by Mr. Greco for the quality of his evidence in regards to

the charges Jack laid.88

Surprisingly, even Cst. D’Amico testifies that Jack was a nice person to work with.89

79. During his entire time at Peterborough Detachment Jack is deprived of the mandatory tour to the

Provincial Communication Center90 as required by the OPP Orders.91

80. Flindall was unable to explain why this mandatory tour and its reflection on Jack’s PERs were

never documented.92 However, this was just one of the many mandatory requirements of those

coaching and supervising the coaching of Jack that were not applied to Jack.

82 Filman 9-Sep-16 pgs. 171-18183 Exhibit 143 pgs. 4-584 Filman 9-Sep-16 pgs. 182-18785 Ibid page 183, Flindall 12-Sep-16 pg. 5886 Postma 10-Feb-16 pgs. 15-16, Exhibit 92 pg. 13 last para.

87 Butorac 14-Sep-16 pgs. 79-80, Exhibit 92 pg. 51 top para.88 Greco 10-Feb-16 pg. 8289 D’Amico 9-Feb-16 pg. 17390 Filman 9-Sep-16 pgs. 125-128, Nie 15-Sep-16 pgs. 123-12591 Exhibit 2892 Flindall 13-Sep-16 pgs. 176-177

14

81. During his time on Flindall’s platoon Jack is deprived of mandatory performance evaluation

meetings93 as required by the OPP Orders.94 Yet all of Jack’s alleged screw-ups and misconduct

are very formally and very thoroughly documented by Flindall in his notes and in other documents

like his PFC, negative 233-10s, PSB duty report and personal notes.95 Interestingly, all 45 pages of

Flindall’s notes from which his chronology of Jack was derived contained nothing but negativity

of Jack. Nothing positive is documented.96

82. During his testimony Flindall gave credit to Jack for his work on a multi-year long, convoluted,

neighbour dispute, with a lot of information to it,97 but this credit is nowhere to be found in Jack’s

evaluations. However, Flindall was negatively rated by Campbell for not overseeing the

investigation of this case properly.98 Hence, Campbell mentions Jack being left alone to investigate

matters beyond his experience level.99

83. Jack’s Work Improvement Plan (WIP) for PER 6&7 was never shared with him.100

84. Jack’s WIP for PER 8 was prepared by Flindall purposefully in such a way as to have Jack work

outside of his comfort level.101

85. In respect to WIP 8, an email from Flindall to Nie102 revealed that the WIP was prepared by him.

Flindall deliberately wanted to put Jack outside of his comfort zone. It is a fact that Flindall

admitted he was not proud of that email.103

86. This fact simply corroborates S/Sgt. Kohen’s evidence that Flindall had a strong dislike of Jack.

87. Pursuant to the teleconference call held on August 31, 2009, Kohen’s writes in her notes, “Sgt.

Flindall (Fidle) has a strong dislike for Probationary Jack”.104

93 Flindall 12-Sep-16 pgs. 10, 23, 130-132, 180-181, 184, 186-192, 194-19594 Exhibits 24, 106, OPP orders on mandatory PERs meetings95 Flindall 12-Sep-16, pgs. 146-147, 180, Exhibits 42, 55, 56, 87, 143, 155, 187, 191, 19296 Flindall 12-Sep-16 pg. 18197 Flindall 13-Sep-16 pg. 10198 Ibid pages 101-10299 Campbell 8-Sep-16 pgs. 23, 45-47100 Flindall 13-Sep-16 pgs. 20-21, Exhibits 196, 197101 Flindall 12-Sep-16 pgs. 197-201, Exhibit 194102 Exhibit 194103 Flindall 12-Sep-16 pg. 202104 Kohen 11-Feb-16 pg. 144, Exhibit 125 pg. 1

15

88. Pursuant to the teleconference call held on August 31, 2009, Flindall writes in his notes, “PC Jack

going to be afforded every opportunity to succeed. The rest is up to him...”.105

89. Jack’s WIP for PER 8 like the previous WIPs does not bear Jack’s signature and neither was there

any explanation provided by Flindall as to why it was missing.106

90. Jack testified that Flindall and Payne were very close.107 Flindall corroborated they were friends.108

91. Campbell testified that the notation in his notes109 about advising an officer of not keeping two

notebooks was directed to Jack.110 OPP orders clearly prohibit such a practice unless authorization

is received.111 Campbell simply refused to agree when it was suggested that it was Payne who

maintained a separate notebook exclusively on Jack.112 Payne was the one who had two separate

notebooks, one for regular duties and one solely dedicated to Jack113 and according to her

testimony she got permission to maintain a separate book on Jack from either Flindall or from

Campbell or from both.114

92. Although Campbell’s notes do not say that he told Flindall that Payne can’t have two notebooks

they did state, ‘can’t have two notebooks.’ Again one must ask if it was about Jack not having two

notebooks then why didn’t Flindall bring that to Jack’s attention? The only answer to that is

because it concerned Payne and Flindall condoned it. Yet again why would Jack have a second

notebook? How come there is not a single shred of evidence of its existence anywhere? And if

there was one, where is it then?

93. Payne’s testimony during cross about keeping a separate notebook solely on Jack was that she had

authorization to do so.115 She was not re-examined on this and so if her testimony is considered to

be true then it does establishes that Jack was targeted by the respondent OPP. She was asked to

105 Flindall 12-Sep-16 pgs. 201-202, Flindall 13-Sep-16 pg. 47106 Flindall 13-Sep-16 pg. 33, Exhibit 44,107 Exhibit 92, page 3, last paragraph108 Flindall 13-Sep-16 pg. 52, Exhibit 198109 Exhibit 156110 Campbell 8-Sep-16 pgs. 38-40, Exhibit 156111 Exhibit 112, OPP orders, Member note taking112 Campbell 8-Sep-16 pgs. 38-40, Exhibit 156113 Payne 14-Sep-16 pg. 138, 140, 182, 184114 Ibid pgs. 133-136115 Ibid pgs. 133-136

16

check her duplicate notebook during the break and advise if they were anything positive about

Jack that she documented. There was nothing positive documented in it.116

94. However, Inspector Johnston was very candid and truthful about keeping two notebooks. He

testified that outside of a specialized unit no patrol officer is allowed to maintain two notebooks

and that is exactly what OPP Orders stipulate. He was the detachment command in 2009 and was

Campbell’s supervisor.117

95. Campbell’s emails to Johnston dated August 18 and 21, 2009, are evidence of discrimination of

Jack’s protected grounds by targeting and proof of Flindall’s strong dislike of Jack.118

96. Flindall’s cross-examination revealed that he had never seen such incompetence in a recruit

before. He was extremely upset at Jack.119 Though Flindall did not want to admit his dislike of

Jack his behaviour towards Jack and his communication to Career Development Bureau S/Sgt.

Kohen was acutely noticed as per her uncontested testimony in this area. Despite not having any

dealings with Flindall in the past, as is evident in Kohen’s inability to spell his name properly, her

notes accurately reflect that which she noticed about Flindall.120

97. Flindall threatens Jack by telling him his job is in serious jeopardy. Jack’s testimony was that

Flindall was very angry and his voice was raised when he communicated that to Jack. Flindall

seems to have difficulty admitting it yet does communicate to Johnston that Jack’s job is in serious

jeopardy.121 Flindall was angry at Mr. Jack. His testimony reveals it and the language he used

denotes it.

‘… I have never had an officer like Michael Jack … that so blatantly disregarded

directions that I would give him …’

‘I have never had an officer so blatantly disregard that to me. And, again, I was...you

know, I'm now a year into my being a sergeant.’122

116 Ibid pgs. 138, 140, 182, 184117 Johnston 9-Sep-16 pgs. 134-138118 Campbell 8-Sep-16 pgs. 21-27, 30-35, 80-81, 133, Exhibits 99, 155119 Flindall 12-Sep-16 pg. 82120 Kohen 11-Feb-16, pg. 144121 Flindall 12-Sep-16 pgs. 81, 88-92, Exhibit 97, 92 pg. 19 para. 2, Jack’s exam122 Ibid pg. 82, Exhibit 92 pg. 19 para. 2-3

17

98. What started out to be a simple question from counsel that called for a ‘yes’ or ‘no’ answer turned

into a three page answer filled with a lot of ‘I’ this and ‘I’ that. Even with the passage of 7 years

this loss of objectivity towards Jack as observed by Campbell and captured in those two August 18

and 21, 2009 emails123 to Johnston was still evident in his testimony. Flindall’s loss of objectivity

had caused him to constantly view Jack subjectively.124

99. Flindall likened Jack to a child in saying that it takes a community or village to raise a child and in

the case of Michael Jack it takes a platoon, it takes a detachment, it takes an organization to train

an officer.125 Ironically, when Mr. Jack sought answers to questions from his platoon officers he

was accused of answer shopping.126

100. Flindall testified that one of the issues with Jack was his organization skills.127 Well, how is it

possible that Jack succeeded to earn two Canadian University degrees in science in less than the

allotted time (5.5 years) with A+ average and earn an OPC diploma with A+ average all of which

was in a language that was foreign to him and while being alone in the country?

101. Furthermore, from the analysis of the case load of Jack128 it is evident that Jack’s workload was

high, even higher129 than that of his experienced and knowledgeable zone partners Filman130 and

Payne.131 There is naturally a limit to how much one can handle. Instead of ensuring Jack had a

manageable case load or adequate help, Jack was assigned a very high workload for his experience

level and in many cases left completely alone to investigate matters beyond his experience level.

And then, chastised for not doing things fast enough and/or good enough.132

102. In his testimony Flindall did not know why on August 15, 2009, the crown brief was submitted to

the Crown Attorney without his signature on it.133

103. On August 15, 2009, Flindall charged Jack under the HTA and was busy preparing a Briefing

Note to his supervisors for the charge against Jack.134 This is the reason Flindall did not have time 123 Exhibits 99, 155124 Ibid pgs. 88-92125 Ibid pgs. 93-94126 Ibid pg. 70, 13-Sep-16 pg. 117127 Flindall 12-Sep-16 pg. 71128 Exhibit 202129 Flindall 13-Sep-16 pg. 152130 Exhibit 203131 Exhibit 204132 Exhibit 92, pg. 10 para. 1, pg. 13 para. 3133 Flindall 13-Sep-16 pg. 102134 Exhibits 151, 162, 180

18

to review Jack’s work and to either sign Jack’s Crown Brief or vet it. Flindall focused on nailing

Jack with all he could as opposed to supervising and mentoring him. That is synchronous with

Campbell correspondence with Johnston that Jack was being targeted as opposed to being

mentored by Flindall.135

104. Further evidence of Flindall’s strong dislike of Jack can be gleaned from the following references

introduced through this hearing:

Flindall segregates Jack from his shift. Flindall says he canvassed his shift and no one

wants to go. His next sentence says, ‘PC Jack asked to go’. In Jack’s testimony he states,

‘there was them and there was Jack.’136

Flindall orders his platoon members and his brother-in-law Banbury platoon members to

keep Jack under surveillance and report their observations of Jack to him.137

Flindall disallows Jack to work overtime and to cover for other officers.138

Flindall falsely charges Jack under the HTA.139

Flindall’s brother-in-law Sgt. Banbury falsely accuses Jack of feigning sickness.140

Jack is the only recruit out of 4 at the detachment whose PERs are chronically overdue.141

Flindall negatively documents Jack for something that turns out to be unsubstantiated.142

Flindall alleges that the nature of the criminal harassment case that he assigned to Jack was

quite serious143 yet in reality it was not even substantiated.144 There was no legal authority

to hold the accused for a bail hearing. Hence, the order Flindall gave to Jack to hold the

accused for a bail hearing was unlawful.145 The outcome of the criminal harassment

investigation is a Peace Bond146 and Flindall is negatively documented by Campbell

regarding overseeing that criminal harassment case.147

135 Exhibits 99, 155136 Flindall 13-Sep-16 pgs. 107-110, Exhibit 149, Jack’s exam137 Exhibits 96, 99, 155, 207138 Exhibit 150139 Exhibit 29140 Campbell 7-Sep-16 pgs. 170-171, Campbell 8-Sep-16 pgs. 11-13, Exhibit 152141 Campbell 7-Sep-16 pgs. 141, 145, 146, Flindall 12-Sep-16 pgs. 29, 183-184, Exhibits 146, 147142 Campbell 8-Sep-16 pgs. 65-66, Exhibit 42143 Flindall 12-Sep-16 pg. 60144 Campbell 8-Sep-16 pgs. 65-66145 Flindall 13-Sep-16 pgs. 77-81146 Ibid pg. 96147 Ibid pgs. 97-98

19

Flindall also contradicts himself with respect to when he made his notes regarding the

criminal harassment case whether it was before his vacation or after he got back.148

However, as previously stated Flindall does know how to doctor his notes.

Flindall denies Jack payment for his overtime work.149

On July 23, 2009, Jack was ordered to work overtime by Flindall.150 Subsequently Jack

was ordered by Campbell to report on duty on July 24, 2009, his scheduled day off, to

complete the work.151 Jack complied with the orders. Jack was denied overtime payment

both for July 23, 2009, and for July 24, 2009. Jack worked a total of 20 hours for free at

time and a half.

In the negative 233-10 documentation152 issued to Flindall, Campbell states that he spent

12 hours of his time doing what should have been done by Flindall. If Campbell spent 12

hours on a criminal harassment case in which no one was even arrested, then how come

Jack was expected to do it in shorter time frame when he did arrest the suspect, prepared

all the paperwork, seized the accused’s 17 firearms and lodged them?

During month 6&7 evaluation period (June 9, 2009, to August 9, 2009) Jack’s case load is

higher than that of Filman and Payne.153

Both Filman and Payne were experienced officers native to the area.154

Both Filman and Payne had inputs in Jack’s PER 6&7, which saw an increase in negative

ratings from 0 to 10 literally overnight.155

Jack’s rebuttal to PER 6&7 is never even discussed with him.156

Jack is maligned by Flindall in the eyes of Nie for being an organized person.157

Jack is maligned by Flindall for allegedly running an undercover surveillance vehicle

license plate158, an allegation that turns out to be unsubstantiated.159

Jack is maligned by Flindall in the eyes of OPP officers for allegedly hanging out with

criminals, an allegation that is formally found to be unsubstantiated.160

148 Flindall 13-Sep-16 pgs. 89-95149 Campbell 8-Sep-16 pg. 53, Flindall 13-Sep-16 pgs. 83, 87, Payne 14-Sep-16 pg. 197150 Flindall 12-Sep-16 pg. 79151 Exhibit 185152 Flindall 12-Sep-16 pg. 55, Exhibit 157153 Flindall 13-Sep-16 pgs. 150-152, Exhibits 202, 203, 204154 Filman 9-Sep-16 pg. 5, Payne 14-Sep-16 pg. 81155 Ibid pg. 132, Payne 14-Sep-16 pgs. 177-179, Exhibit 198156 Campbell 8-Sep-16 pg. 140, Flindall 13-Sep-16 pg. 190, Exhibit 107157 Flindall 12-Sep-16 pgs. 197-202, Exhibit 194158 Exhibit 192159 Flindall 12-Sep-16 pgs. 157-160, 172-175, Exhibit 102, 192 160 Campbell 8-Sep-16 pgs. 77-78, Flindall 13-Sep-16 pg. 209, Exhibits 158, 213

20

Jack is maligned in the eyes of OPP officers of rank for allegedly surreptitiously video

recording officers,161 an allegation that is totally false.162

Jack is maligned by Flindall in the eyes of OPP officers of rank for Jack’s involvement in a

4 year old occurrence involving Jack as a security guard. The occurrence was dug up by

Filman and Payne.163 Flindall promptly forwards it to the command staff.164 Jack is neither

interviewed by the police nor ever questioned about it by anybody.165

Jack is maligned by Flindall in the eyes of OPP officers of rank for not being mentally

right or mentally unstable.166

Jack is maligned in the eyes of OPP officers of rank for refusing to sign his PERs.167

Jack is denied vacation during his entire probationary year.168 The only permitted time off

duty Jack took was between August 20 and September 9, 2009, which was at the expense

of cumulative time off and statutory holidays.169

105. Where does one stop? Flindall’s strong dislike of Jack will fill many more pages but the

applicant’s closing submissions are restricted to 30 pages.

106. Jack’s testimony about his overall treatment is corroborated by testimony of Campbell that:

Flindall was not objective and lost focus with Jack.170

That Jack was being watched by members of at least two entire shifts,171 Flindall’s shift

and Flindall’s brother-in-law Banbury’s shift.172

That Jack’s every move was being scrutinized and documented by Flindall.173

That Jack was being left on his own to fully investigate matters beyond his experience

level.174

161 Ibid pgs. 119-124; Flindall 13-Sep-16 pg. 194, Exhibit 163162 Moran 9-Feb-16 pgs. 180-182163 Exhibits 108, 109, 110, 133, 199, 200164 Flindall 13-Sep-16 pgs. 62-63, 67, 72-73165 Flindall 13-Sep-16 pgs. 62-63, 67, 72-73, Payne 14-Sep-16 pg. 158166 Campbell 8-Sep-16 pgs. 104-106167 Exhibit 124168 Flindall 12-Sep-16 pgs. 57-58, Flindall 13-Sep-16 pgs. 153-155, Exhibit 205169 Flindall 13-Sep-16 pgs. 30-31, Exhibit 92 pg. 23 para. 3170 Campbell 8-Sep-16 pgs. 27, 72, 80, 146171 Exhibit 207172 Flindall 12-Sep-16 pg. 125173 Campbell 8-Sep-16 pgs. 15, 19, 189-190174 Ibid pgs. 23, 45-47

21

That Campbell and Johnston both felt Jack was being targeted.175

That Flindall’s supervision of Jack was an issue.176

107. Campbell communicates this to Johnston and also notes a potential Human Rights complaint.177

108. However, due to the Jack’s poisoned work environment, surveillance of Jack spreads to other

platoons as can be seen in an email from Gravelle (platoon ‘C’) to Flindall.178

109. Moreover, Campbell explicitly instructs Flindall to be objective, to ensure Jack has a poison free

work environment and proper supervision179 and subsequently warns Flindall that there is a danger

of a Human Rights complaint as a result of Flindall’s treatment of Jack180 all of which Flindall

conveniently has no recollection of.181

110. Finally, when those verbal reprimands prove to be insufficient182 Campbell negatively documents

Flindall in relation to his lack of proper supervision of Jack.183 Flindall immediately vents his

anger on Jack. For upon being served his negative 233-10 documentation Flindall alleges that Jack

is hanging out with members of organized crime yet does not even have all the details to make

such an allegation.184 That allegation is determined to be unsubstantiated, just like the HTA charge,

just like the allegation of feigning sickness, just like the allegation of surreptitiously recording

officers, just like the allegations of refusing to sign his PERs, the list goes on.

111. The ‘Are we in any shit?’ email185 speaks volumes about Flindall’s concern over his treatment of

Jack.

Constable Jennifer Payne and the winking accusations

112. Facts:

175 Ibid pgs. 21-25, 30-35, Exhibits 99, 155176 Campbell 8-Sep-16 pg. 29, Exhibits 116, 165177 Exhibits 99, 155178 Exhibit 96179 Campbell 8-Sep-16 pg. 38180 Ibid pg. 26-27, 72, 80, Exhibit 143 pg. 23181 Flindall 13-Sep-16 pg. 112182 Campbell 8-Sep-16 pgs. 44, 68-70183 Ibid 8-Sep-16 pgs. 42-43, Exhibit 157184 Ibid pgs. 68-71, Exhibit 100185 Exhibit 154

22

Payne heard the nick name ‘Crazy Ivan’.186

Payne’s opinion is that Jack shows off.187

Payne is in a common-law relationship with Cst. Brockley and they have two daughters

together.188

In the summer 2009 Jack is dating a local girl.189

On July 1, 2009, Payne raises her voice on Jack and reprimands him verbally in front of

others in the detachment.190

After July 1, 2009, Payne feels Jack is avoiding her.191

In an email on August 15, 2009, Moran mentions to Flindall she has heard that Jack has

a dislike of women.192

According to Campbell’s interpretation Jack does not like women in authority.193

Payne advises Flindall that Jack winks at her prior to even speaking to Jack about it.194

On July 18, 2009, Payne accuses Jack face-to-face of winking at her.195

When Jack denies winking purposefully at Payne,196 explaining that it could have been

his eye fluttering under stress Payne thinks Jack is lying.197

In her examination in chief Payne states about Jack, ‘Well, I think he thinks he is better

than everyone else.’198

113. Questions:

Why would Jack who is dating a local girl, whose entire future life depends upon getting

through his probationary period, who according to the respondents has either a dislike of

women in general or has a dislike of women in authority, wink at a female officer in

authority who is in a long-term common-law relationship with another constable at the

detachment, who had already reprimanded and raised voice on Jack in front of others and

according to her own testimony is being avoided by Jack? The sheer facts of Jack avoiding

186 Payne 14-Sep-16 pg. 84187 Ibid pg. 87-88188 Brockley 11-Feb-16 pg. 22, Campbell 8-Sep-16 pgs. 73-74189 Exhibit 92, pgs. 16-17190 Payne 14-Sep-16 pg. 193, Exhibit 92 pgs. 15-16191 Ibid pg. 108192 Exhibit 162193 Campbell 8-Sep-16 pgs. 114-115194 Payne 14-Sep-16 pg. 112195 Payne 14-Sep-16 pgs. 119-121, 207-208196 Ibid pg. 120197 Ibid pgs. 207-208198 Ibid pgs. 130, 185

23

Payne and Jack winking at Payne at the same time do not match. What sense does it make?

Neither could Payne answer that.199

199 Ibid pg. 194

24

REFUSED

114. Jack testified that he never refused to sign his PER 6&7 upon being served it by Flindall. Due to

its shocking content and artificially imposed time limit to review, sign and return it (within 20

minutes) he simply asked Flindall for more time to review it prior to signing it.200 He was denied

that.201

115. Jack testified that his alleged refusal to sign his PER 8 is a fraud. He was never even offered an

opportunity to sign his PER 8. It was given to him with the word ‘REFUSED’ in the place of his

signature202. Flindall testified that he did not serve Jack with his PER 8203 yet the word

‘REFUSED’ in place of Jack’s signature is his handwriting.204 While both Flindall and Jack made

plenty of notes in their respective officer’s journals about PER 6&7 and Jack’s refusal to sign it205,

neither Jack nor Flindall made any notes at all about PER 8 and Jack’s alleged refusal to sign it.

When questioned about the ‘Refusal’ Flindall could not explain it.206

116. Butorac presented Jack with his PER 8 on September 24, 2009,207 and further testified that there

was an evaluation that said “REFUSED” on it and that he neither recalls Jack refusing to sign it

nor made any notes about it.208

Sergeant Peter Butorac and ‘Is Jack’s Case Hopeless?’

117. Butorac was not privy to what transpired with Jack prior to his return to work on September 9,

2009, or the information therein as both Butorac and Jack started on the same day.209

118. According to Butorac, as of September 19, 2009, they had not yet received Jack’s PER 8.210

200 Flindall 12-Sep-16 pgs. 102-103, Flindall 13-Sep-16 pgs. 34-38, 189-190, Exhibits 32, 164, Jack’s exam201 Campbell 8-Sep-16 pg. 139, Exhibit 92 pg. 31, Jack’s exam202 Exhibit 92 pg. 38203 Flindall 12-Sep-16 pg. 106204 Ibid pg. 107, Flindall 13-Sep-16 pg. 48205 Exhibit 32206 Flindall 13-Sep-16 pg. 48-50207 Butorac 14-Sep-16 pg. 63208 Ibid pgs. 67-68209 Butorac 14-Sep-16 pgs. 4-5, 28-31, 59, Exhibit 92 pgs. 21, 32210 Ibid pgs. 16-17

25

119. In cross Butorac acknowledged that the drug grow seizure that resulted from Jack’s information to

the drug squad211 would have been proper for Nie to use in Jack’s month 10 PER.212 However, the

reality is that even Butorac dropped the ball on Jack for that email213 was copied to him and as a

supervisor he failed to ensure its reflection in that PER and to issue a positive 233-10 to Jack.

120. In light of everything Jack was experiencing is it any wonder why he asked Butorac if his case was

hopeless.214

121. During Butorac’s cross, which went unchallenged, he was asked if there was any conversation

during the 45 minute drive from Peterborough detachment to Lindsay detachment on the night of

December 13, 2009. He said he did not have any notes of any conversation and followed up with

‘… but it wouldn’t be like me to be totally silent.’ So when questions that would have been

damaging to the respondent were put to him regarding what Jack testified Butorac told him during

that 45 minute drive, Butorac conveniently responded with a ‘I do not recall’. However something

that was not damaging to the respondent Butorac recall very clearly in the absence of any notes

and after the lapse of 7 years.215

122. Still Butorac’s ‘I do not recall responses’ do not mean they were not true. How could Jack have

such exclusive knowledge?

Constable Richard Nie and the clean slate hypocrisy

123. Jack is told by the respondent OPP that his transfer to Butorac’s shift with Nie as his new coach

officer is to be viewed as a clean slate. We respectfully ask this Tribunal to consider the following

facts ipso facto:

Nie is capable of terminating probationary constables.216

Nie and Flindall were next-door neighbours and friends.217

211 Exhibit 59, Exhibit 92, pg. 43212 Butorac 14-Sep-16 pg. 53213 Exhibit 59214 Exhibit 53215 Butorac 14-Sep-16 pgs. 76, 78-80216 Postma 10-Feb-16 pgs. 29-33, Campbell 8-Sep-16 pgs. 96-101, Exhibits 116, 160217 Flindall 12-Sep-16 pgs. 196, 204, Butorac 14-Sep-16 pg. 59, Nie 15-Sep-16 pgs. 66-67

26

Nie denies hearing rumors about Jack before starting to coach him.218 However, when

faced with documentary evidence authored by him, Nie admits hearing rumors about

Jack.219

Nie is biased and prejudiced against Jack before even starting to coach Jack.220

When Nie starts coaching Jack, Jack already has 17 ‘Does Not Meet’ categories from

Flindall’s shift.221

Nie testifies that given the number of negative ratings in PER 8 it was going to be a

challenge.222

Jack follows Nie’s directions.223

Jack confides to Nie that he is scared of him.224

Jack tells Nie about how intimidating his coaching is and that he is unsure about Nie’s

true motives.225

Nie assures Jack that he is helping him.226

Nie testifies that he neither coached nor treated Jack any differently than any other

recruit he had,227 yet he starts preparing the PFC – the document that is required for

termination of employment – on the first day of coaching Jack.228 Thus essentially

marking Jack for termination on the first day of coaching him.229

Nie prepared PFC for 2 recruits that were terminated out of 7 that he coached230 and

only in the case of Jack Nie starts preparing the PFC on the first day of coaching him!231

How can this not be viewed as a differential treatment?

Nie focuses on meticulously documenting just about anything negative he can come up

about Jack and his performance232 of which Jack is unaware at the time.233

218 Nie 15-Sep-16 pg. 11219 Ibid pgs. 71-72, 75, Exhibit 223220 Ibid pgs. 11, 71-78, Exhibits 223, 224221 Nie 15-Sep-16 pgs. 169-170222 Ibid pg. 12223 Ibid pg. 26224 Ibid pg. 127225 Ibid pgs. 47-48, 125-126226 Ibid pg. 20227 Ibid pg. 177228 Ibid pgs. 168-170229 Ibid pgs. 168-170230 Ibid pgs. 169-170231 Ibid pgs. 168-170232 Exhibit 143 pgs. 25-46, Exhibit 92 pgs. 32-38233 Nie 15-Sep-16 pg. 126

27

Nie documents Jack negatively in PFC234 and rates Jack negatively in PER 9 within the

first hour of coaching Jack235. To add insult to injury Nie documents Jack for something

that turned out to be unfounded.236

During the first 9 shifts of coaching Jack, Nie accuses Jack and documents in PFC 35

negative things about Jack and his performance.237

On one particular day, namely September 18, 2009, Nie makes 8 negative entries in his

PFC about Jack in only 5.5 hours with him.238

For an officer who coached Jack for three months Nie’s entries in PFC account for more

than half of the entire PFC, which is compiled by 5 different officers.239

Nie admits that his PFC entries are done from a subjective point of view.240

Though Nie testifies that he does not recall Jack telling him he is being harassed or

discriminated against,241 Nie testifies extensively about how Jack spoke to him about

discrimination in general.242

Butorac testified that Jack was overwhelmed when he started on his platoon.243

Butorac testified that he understood how Jack must have felt and that the number of the

‘Does Not Meets’ was a constant cloud that overshadowed the whole process of

providing Jack with a clean slate.244

Butorac testified that their platoon was over-challenged by being tasked to address

‘deficiencies’ from Flindall's shift.245

Butorac testified that Jack overwhelmingly felt he was under the gun all the time with

respect to his work abilities and that they were being scrutinized and that more negatives

were being identified than positives.246

Despite the fact that Jack’s direct involvement in the initial investigation that led to a

successful seizure of a two million dollar illegal drug grow operation,247 Jack’s

234 Exhibit 143235Exhibit 92 pgs. 33-34236 Nie 15-Sep-16 pgs. 106-110237 Ibid pg. 60238 Ibid 150-151, 154-155239 Ibid pg. 126240 Ibid pgs. 90-91241 Ibid pgs. 32, 53-54242 Ibid pg. 35243 Butorac 14-Sep-16 pg. 12244 Ibid pgs. 18-20245 Ibid pg. 33246 Ibid pgs. 26, 37, 40-41247 Exhibits 59, 92 pg. 43

28

involvement was never mentioned anywhere248 and to add insult to injury even this piece

of documentary evidence249 was withheld by the respondent.250

Butorac served Jack with the internal complaint on September 23, 2009, and according

to his testimony the wording ‘Undesirables’ on it would have caused him some concern

and was not congruent with Human Rights Code.251

Performance evaluation reports

124. The analysis of Jack’s PERs deserves a submission on its own and it would require considerably

more than 30 pages to explore them properly. However, the examination of Jack’s 9 PERs252

during the course of the hearing along with the entered rebuttals253 showed that some parts of the

PERs are of questionable validity, some lacking objectivity while others are being plain targeting.

Thus we heed to the Vice Chair’s direction that this case is not about wrongful dismissal but about

Human Rights violations. If some parts of the PERs were malignantly wrong,254 how much

credibility can one assign to the rest and to the true motives of the authors of those PERs?

Tightly knit group of trusted associates having a controlling influence

125. The officers who are responsible for Jack’s negative performance evaluation ratings, negative

documentations, negative PFC entries, HTA charge, accusations such as winking at a female officer,

feigning sickness, running an undercover vehicle plate, hanging out with criminals, internal PSB

complaint and many other aforementioned fault-findings and who also failed to comply with basic

mandatory OPP Orders with respect to their supervision of Jack are:

Sgt. Robert Flindall, son of retired Inspector Bill Flindall who served as Peterborough OPP

Detachment Commander.255

Sgt. Trevor Banbury, brother-in-law of Sgt. Robert Flindall.256

248 Butorac 14-Sep-16 pgs. 47-52249 Exhibit 59250 Butorac 14-Sep-16 pg. 53251 Ibid pgs. 60-62252 Exhibits 19, 22, 23, 25, 33, 35, 50, 61, 64253 Exhibits 34, 36, 40, 52, 63, 66254 Campbell 8-Sep-16 pgs. 147-154, 163255 Flindall 12-Sep-16 pgs. 125-126256 Ibid 12-Sep-16 pg. 125

29

Cst. Shaun Filman, subordinate officer of Sgt. Robert Flindall and son of retired Cst. Brad

Filman who served at Peterborough OPP Detachment his entire life.257

Cst. Jennifer Payne, subordinate officer and friend of Sgt. Robert Flindall.258

Cst. Jamie Brockley, husband of Cst. Jennifer Payne.259

Cst. Richard Nie, neighbour of Sgt. Robert Flindall.260

Conclusion

126. Counsel questioned respondent witnesses repeatedly whether any of the prohibited grounds played

a role in their treatment of Jack. Is one really to expect the respondent witnesses to respond to

counsel’s questions whether any of the prohibited grounds played a role in their treatment of Jack

truthfully? Something akin to, ‘We did not like Jack because of his thick Russian accent, or

because he is Russian, or because he is Jewish, or because he is a foreigner, or whatever.’

257 Jack’s exam258 Flindall 12-Sep-16 pg. 52259 Brockley 11-Feb-16 pgs. 21-22, Payne 14-Sep-16 pgs. 123, 132, 163260 Flindall 12-Sep-16 pgs. 196, 204, Butorac 14-Sep-16 pg. 59, Nie 15-Sep-16 pg. 67

30

127. Counsel questioned respondent witnesses repeatedly if Jack ever complained about the

discrimination and harassment he was subjected to and whether he complained about his human

rights violations. Jack’s correspondence with Karen German261 and his Memorandum on October

19, 2009,262 proves that he did raise his concerns to the respondent OPP. Jack testified about his

ignorance of the Code. However, it is not about Jack’s ignorance of the law rather it is about the

respondent’s deliberate violation of the law. Furthermore, Jack learned about the ‘Crazy Ivan’

nickname assigned to him after the termination of his employment.263 In light of these facts, how

could Jack raise his human rights violations during his probationary term?

128. Mr. Jack’s resignation was extorted from him. He was threatened, ‘sign this resignation or be

fired’264. This was what he was told by Chief Superintendent Armstrong on December 15, 2009 by

the OPP – resign or be fired.265 Faced with this Jack chose the apparent lesser of the two evils and

signed a respondent prepared resignation letter. He did not tender a resignation letter prepared by

him.266 It was Jack’s testimony that he never resigned but was forced to resign, something that was

not done willingly and freely but under the application of a threat, something that the Supreme

Court of Canada calls ‘extortion’.267 268

129. The racism in that original email of August 5, 2008, permeated the whole of Peterborough OPP

Detachment to the point of officers feeling comfortable to falsely accuse Jack without the fear of

reprisals.269 It culminated to the point whereby his performance evaluations were deliberately

manipulated to portray negativity so that his Employment would be in jeopardy and he would be

forced into signing a resignation.270

130. Ample evidence has been revealed on how derogatory the term ‘Associating with Undesirables’

was for the applicant. It is a fact that the respondent referred to Albanian Canadians as

‘Undesirables’. No Canadian deserves to be labelled as an undesirable. It is also a fact that the

allegation was humiliating and degrading to the recipient, Mr. Jack which is why Sgt. Butorac in

his testimony on the 14 of September 2016, stated ‘… I would be embarrassed to receive such an

261 Exhibit 120262 Exhibit 53263 Duignan 8-Feb-16 pgs. 159-163, Exhibit 92 pg. 58, Jack’s exam264 German 11-Feb-16 pg. 87, Exhibit 228265 Armstrong 12-Feb-16, pgs. 101-103, 111-119266 Exhibit 92, pg. 56 para. 1, Jack’s exam267 R. v. BARROS, 2011 SCC 51, [2011] 3 S.C.R. 368, para. 61, 62 and 63; Applicant’s Book of Authorities, Tab 1268 R. v. DAVIS, [1999] 3 SCR 759, 1999 CanLII 638 (SCC), para. 45 and 46; Applicant’s Book of Authorities, Tab 2269 Exhibit 92 pg. 31 para. 2, pg. 22 last para., Exhibits 162, 191, 199270 Exhibit 92 pg. 43 last para., pgs. 54-55, Jack’s exam

31

allegation …’ He knew how contrary to the Code it was.271 Cst. German stated, ‘… whatever the

name Sgt. Thompson used … .’ It was so embarrassing that she simply could not say that word.272

131. Ample evidence has been revealed on how racially derogatory a nick name ‘Crazy Ivan’ was to

the Russian born applicant. Yet there is not a single shred of evidence of Jack ever being

violent.273

132. This Racism that Jack was subjected to shattered his goal of sponsoring his family from Israel.274 It

ruined him physically, mentally, emotionally, psychologically and financially.275 As a result of the

overall Racism that he experienced from the respondent OPP he left Canada.276

133. Jack summarized how he was treated by the respondent OPP most succinctly: ‘I was brought

down onto my knees and then executed.’277

134. Coaching of a police recruit can be perfectly structured, but flounder due to tunnel vision or

“noble cause corruption” or loss of objectivity or bad judgment. All of this was present in the case

of Jack. Older techniques and thought processes are, at times, deeply ingrained and difficult to

change. Bluntly put it is prejudice. Police culture is not easy to modify. The failings of the

respondent OPP which have been identified are systemic and not confined to only those that

testified. The challenge for the respondent OPP must be to enhance policing through an

introspective examination of the OPP culture. Through the outcome of this hearing the Ontario

Public Service and the OPP will then be tasked to commence such an examination.

135. Last but not least, 7 years after the events that led to this hearing Mr. Jack has neither lost his zeal

regarding this application, nor given up, nor has he succumbed to numerous mediations. Convicted

by his beliefs Jack’s representative also pursued a similar zeal to hold the respondent accountable

for what all he has witnessed. Mr. Vice Chair was right when he stated that this hearing

monopolized Mr. Jack’s life.278 Exacerbated by the fact that Mr. Jack does not even reside in

Canada, is the fact that he reached the stage of final submissions. If anything it simply attests to

the strength of Mr. Jack’s spirit and his unshaken belief in the Canadian justice system.

271 Butorac 14-Sep-16 pgs. 61-62272 German 11-Feb-16 pg. 73273 Johnston 9-Feb-16 pg. 119, D'Amico 9-Feb-16 pg. 162, Campbell 8-Sep-16 pg. 105, Jack’s exam274 Exhibit 92 pg. 68, Jack’s exam275 Ibid276 Ibid277 Exhibit 92 pg. 55 last para., Jack’s exam278 Brennenstuhl 13-Sep-16 pg. 8